JAPANESE CONSTITUTIONAL LAW--MARRIAGE--JAPANESE SUPREME COURT HOLDS THAT FORCING COUPLES TO SHARE A SURNAME IS CONSTITUTIONAL.--Saiko Saibansho [Sup. Ct.] June 23, 2021, Reiwa 2 (ku [??]) no. 102.
Japan is the only country in the industrialized world that forbids married couples from having different surnames. (1) Though most Japanese people oppose the system, the Supreme Court of Japan (SCJ) recently upheld the laws that make married couples share a surname. (2) The SCJ's reasoning typified weak judicial review, consisting of deference to the legislature and failure to balance constitutionally protected interests against the public welfare, both of which implicate concerns about the legitimacy of the Japanese Constitution. Its reasoning also showed how weak judicial review can lead the SCJ to overlook constitutional rights, like freedom of expression.
In 2018, three couples asked on their marriage registration forms that the husband and wife have different surnames. (3) The Mayor of Kokubunji denied the requests because of Civil Code Article 7504 (CC750), which says that "[a] husband and wife shall adopt the surname of the husband or wife ... at the time of marriage," (5) and Family Register Act Article 74 (6) (FRA-74), which says that couples need to put "the surname that the husband and wife will take" on their applications. (7) The couples appealed, arguing that the laws violated the Japanese Constitution's equal protection and marriage provisions. (8)
The To kyo High Court upheld the Mayor's dismissal.9 In a twelve-to-three decision, the Supreme Court affirmed, holding that CC-750 and FRA-74 were constitutional. (10) The majority relied on a case from 2015 (the "2015 case"), where the SCJ, on similar facts, held that surnames are part of the legal system, so harms stemming from changing surnames affect personal interests, not constitutional rights. (11) Although the Constitution requires the Japanese Legislature, the Diet, to account for personal interests, CC- (750) was constitutional and reasonable. (12) The 2021 majority agreed and held that, under the 2015 case's reasoning, FRA-74 was "obvious[ly]" constitutional as well. (13) The majority acknowledged a shift in some important social factors, like a higher percentage of women in the workforce and lower percentage of people who agreed with the system, but held that the 2015 case still controlled. (14) Last, the majority argued that since the same-surname system was constitutional, it was up to the Diet to decide what kind of system to use. (15)
Justices Miyama, Okamura, and Nagamine wrote a concurring opinion. (16) They argued that the system is an indirect constraint on marriage because it does not limit the act of marriage itself, but rather is one effect of marriage that does not hinder the free and equal decisionmaking of the couples. (17) Next, the Justices looked at whether the system was unreasonable "in light of ... individual dignity and the essential equality of the sexes" and therefore unconstitutional. (18) The Justices thought changed circumstances could make the system unconstitutional (19) but argued that none of the changes since 2015--like increased female employment, less popular support, or...